| Matter of Ariel C.W.-H. (Christine W.) |
| 2011 NY Slip Op 08004 [89 AD3d 1438] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Ariel C.W.-H., an Infant. Monroe County Department ofHuman Services, Respondent; Christine W., Appellant, et al., Respondent. (Appeal No.2.) |
—[*1] David Van Varick, County Attorney, Rochester (Patricia Woehrlen of counsel), forpetitioner-respondent. Tanya J. Conley, Attorney for the Child, Rochester, for Ariel C.W.-H.
Appeal from an order of the Family Court, Monroe County (Dandrea L. Ruhlmann, J.), enteredOctober 12, 2010 in a proceeding pursuant to Family Court Act article 10. The order, among otherthings, adjudged that respondent neglected the subject child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: These consolidated appeals arise from combined child protective proceedingspursuant to Family Court Act article 10. In appeal No. 1, respondent mother appeals from an orderthat modified prior orders of protection to include one of petitioner's caseworkers as a protected party.The order in appeal No. 1 was superseded by the orders of fact-finding and disposition with respect toeach of the mother's two youngest children that were entered after the mother filed the notice of appeal.Those orders incorporated orders of protection concerning representatives of petitioner. We thereforeconclude that appeal No. 1 must be dismissed (see generally Matter of Giovanni K., 62 AD3d 1242, 1242 [2009],lv denied 12 NY3d 715 [2009]). In appeal No. 2, the mother appeals from a decisionadjudicating her two youngest children to be neglected. Although no appeal lies from a mere decision(see Kuhn v Kuhn, 129 AD2d 967 [1987]), we exercise our discretion to treat the notice ofappeal as valid and deem the appeal from the decision as two appeals taken from the orders offact-finding and disposition with respect to each child (see generally CPLR 5520 [c]; Matter of Morgan P., 60 AD3d 1362[2009]).
The mother failed to preserve for our review her contention that Family Court lacked the authorityto impose an order of protection in favor of petitioner's representatives (see generally Matter of Pauline E. v RenelderP., 37 AD3d 1145, 1146 [2007]; Matter of Barker v Dorman, 292 AD2d 806[2002]), and we decline to address that contention in the interest of justice. Contrary to the [*2]mother's further contention, the court properly granted petitioner's motionto conform the pleadings to the proof. The court has the discretion to "amend the allegations to conformto the proof" (Family Ct Act § 1051 [b]), and it is an abuse of discretion to withhold permissionfor such an amendment " 'unless the opposing party can allege demonstrable and real surprise orprejudice' " (Matter of Simonds vKirkland, 67 AD3d 1481, 1483 [2009]). Here, the mother conceded that her objection topetitioner's motion to conform the pleadings to the proof was not based upon surprise, and the recordestablishes that she did not suffer any demonstrable prejudice when the court conformed the pleadingsto the proof and considered evidence concerning events that occurred subsequent to the filing of theneglect petitions.
We reject the mother's contention that petitioner failed to establish that she neglected the subjectchildren. The mother's neglect of those children may be established by evidence that she previouslyneglected another child, coupled with "evidence that [she] failed to address the mental health issues thatled to [the prior] neglect determination[ ]" (Matter of Sasha M., 43 AD3d 1401, 1402 [2007]; see FamilyCt Act § 1046 [a] [i]; Matter of Krystal J., 267 AD2d 1097 [1999]). In this case, themother's parental rights were terminated with respect to one of her older children on the ground ofmental illness during the neglect proceedings concerning the subject children. These neglect proceedingswere also based on a theory that the mother was unable to care for the subject children because of heruntreated mental illness. Inasmuch as the record contains evidence indicating that the mother continuedto experience mental health problems related to her schizophrenia and had been hospitalized twice formental health-related issues after her parental rights with respect to the older child were terminated, weconclude that the court's neglect determination with respect to the subject children is supported by therequisite preponderance of the evidence (see § 1046 [b] [i]; see generally SashaM., 43 AD3d at 1402; Krystal J., 267 AD2d 1097). Present—Fahey, J.P., Carni,Sconiers, Gorski and Martoche, JJ.